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OPINION | MASTERSON ONLINE: Hollowing out our FOIA

by Mike Masterson | March 13, 2021 at 8:14 a.m.

Most citizens aren't aware our state's once nationally respected Freedom of Information Act of 1967 has dwindled to a mere shadow of its original self.

This vitally important law became effectively neutered since the state Supreme Court (in the 2019 City of Fort Smith v. Wade) erased the definition of what under law constitutes a meeting of public officials.

In essence the justices (with two dissents) overruled 43 years of state law and said a previously unlawful meeting of all Fort Smith city directors, with three of seven essentially announcing their vote on an important matter of public business, was not a public meeting. It was clear under prior law, valid since 1973, that this was indeed an informal meeting.

The Supreme Court previously ruled the responsibility for determining the definition of meeting (if a more formal definition was sought) fell solely upon the Legislature rather than with those justices.

When our FOIA became law more than 50 years ago, a meeting required public notification when even a few officials of a body gathered informally to discuss public business. Simple enough.

That meant officials had to notify the public (aka press) of their meeting to ensure citizens could understand how subsequent voting and decisions during later formal meetings had been made.

Since its controversial 2019 decision, our leading court and the Legislature have allowed the shameful lack of transparency to continue, leaving all form of councils, commissions, departments, bureaus and others who serve the public's interests to informally conduct the public's business without understanding what legally defines a meeting in Arkansas.

The only way to know what constitutes a meeting today is whether one is formally announced. That leaves a yawning gap for abuse and lack of understanding and perspective.

Although I also believe there are those (unfortunately including some legislators) who prefer to transact public business in secret, their unwillingness to legally define informal meetings is a disgraceful shirking of responsibility by legislators.

Lawmakers in 38 other states who are interested in preserving transparency for their citizens have established such a legal meeting definition, according to Fort Smith attorney Joey McCutchen.

McCutchen frequently files FOIA suits against public bodies that violate the act, including those in his hometown where he's argued strongly for the legal definition of a meeting.

"The City of Fort Smith spent over $100,000 in McCutchen v. City of Fort Smith in taxpayer money on attorney fees trying to have FOIA declared unconstitutional because the term 'meeting' was not defined," he said.

"And in City of Fort Smith v. Wade, the city of Fort Smith unsuccessfully argued that a meeting could not be held by email," McCutchen added. "The Legislature needs to define the term meeting in clear terms because, as the law currently stands, it is unclear and requires either legislation or more protracted and costly litigation to define."

Wish we had more FOIA advocates like McCutchen.

University of Arkansas at Little Rock law professor, author and widely respected FOIA specialist Robert Steinbuch shared similar feelings the other day. "It's really a shame we haven't so far been able to pass a simple bill to define a meeting. Too many bills are written by lobbyists and administrative agencies.

"The Legislature is supposed to be an independent branch representing the people more so than any other branch. When they do the bidding of lobbyists and the executive, they amplify the administrative state, which is the biggest threat to individual freedom."

Well said. I'm sure many public officials, government agencies and others subject to FOIA are enjoying the absence of such a definition since they now have no legal meeting standard to potentially violate.

The 2019 decision threw sand in the FOIA's gears. Forty-three years earlier, the court determined in City of El Dorado v. El Dorado Broadcasting Company that a public meeting occurs when a governing body discusses official business on which foreseeable action might be taken.

The high court of that era made clear the term "informal meeting" applied to situations which involved multiple council members or city directors (at least three of a number less than a quorum) meeting to discuss public business. The El Dorado council had four members present.

McCutchen said the court wrote that it could think of no reason for the act specifying applicability to informal meetings of governmental bodies unless it was intended to cover informal but unofficial meetings for the discussion of governmental business. That was distinguished from contacts by individual members that occur in their daily lives. Any other construction would obliterate the word "informal" as applied to meetings and make it simpler to evade FOIA than to comply with it.

The original legislative intent when it comes to FOIA was set out clearly and was to be liberally construed to best serve the state's citizens: "It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials."

In a strong dissent of the controversial 2019 Wade decision that overrode existing FOIA case law, Justice Josephine Linker Hart called the court's misguided decision what it was: downright toxic to our free and open society. "Perhaps unwittingly, the majority has imposed a requirement that, to constitute a meeting, an email must: (1) directly solicit a response; (2) render a decision; and (3) involve more than three-sevenths of a city's board of directors. Worse still, these determinations will almost certainly require a lawsuit to resolve," Hart wrote.

"... In the case before us, the email group was established to discuss public business, which the directors obviously did. Today's majority opinion denies the electorate in Fort Smith insight into the performance of its elected officials and allows those public officials to make their decisions in secret. Secrecy is poison to democracy. On this point, I respectfully dissent."

Justice Hart was squarely on target. And Senate Bill 208 by state Sen. Dan Sullivan (if it ever makes it out of committee) would correct this deficiency by amending the FOIA definition of a meeting in order for the public and the media to be fully informed of the actions of our governing bodies.

SB208 has been pulled from the State Agencies Committee for fear it wouldn't pass. And the sad truth is it won't pass without our state media becoming involved and aggressively protecting its own rights and those of the people.

If ever there was a just cause for the press dedicated to fighting against back-room deals and lack of governmental transparency due to lack of a definition of what constitutes a meeting, the media will be left out along with the voting, taxpaying citizens of Arkansas.

I realize the majority of our citizens likely won't ever directly utilize benefits from our state's transparency law. However, every resident could reap those benefits greatly if they follow media accounts, which regularly rely on FOIA to collect facts necessary to fulfill their First Amendment responsibilities.

This means each and every one of us should care greatly whether they are not receiving the information they want and need to make informed decisions about those they assign to direct their lives. Last time I checked, all forms of government exist to serve the people rather than themselves.

I'd strongly suggest contacting your legislators and asking them to get busy fulfilling their responsibility by passing a bill that clearly defines what legally constitutes an informal meeting.

Our population and the media that serves it requires such action rather than continuing to leave everyone in Arkansas in the dark when it comes to transparency.

It's beyond a shame that the state Supreme Court placed us in such a regrettable situation by siding with the Fort Smith powers-that-be in 2019, contradicting previous rulings by two circuit courts that agreed council members had wrongfully utilized email chains to discuss and conduct the city's business among themselves before voting in public.

Now go out into the world and treat everyone you meet exactly how you want them to treat you.

Mike Masterson is a longtime Arkansas journalist, was editor of three Arkansas dailies and headed the master's journalism program at Ohio State University. Email him at [email protected]

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